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Failure to join the Law of the Sea Convention harms U.S. interests

Jon Frankenheimer’s classic 1962 movie, “The Manchurian Candidate,” is an exquisite metaphor for the impending debate over U.S. accession to the Law of the Sea Convention. The movie, which is a parody of the Cold War and a psychological study of McCarthyism, depicts how the far right is a tool of the far left. President Barack Obama is about to enter into the dark and metaphorical world of the Cold War-era film as he and the Senate consider U.S. participation in the Law of the Sea.

There are more than 150 parties to the treaty, which has become the “constitution” for the world’s oceans, and the president has a golden opportunity to burnish America’s multilateral credentials — and promote U.S. economic and military interests — by ratifying the treaty. But as the administration and the Senate turn their attention toward U.S. membership in the convention, they will encounter conservative Republican palace intrigue straight out of archetypal 1950s cinema.

Since 1994, the United States has considered joining the convention, which delineates the rights and duties of coastal states and maritime nations throughout the global commons. A minority of activists from the political right raised a host of criticism about the treaty, including that it will bring about a world government, U.N. taxes, a U.N. Navy, and other fanciful specters. Despite voicing support for the convention, President George W. Bush was unable to grab this low-hanging fruit and gain U.S. entry into a multilateral framework that promotes both economic and military interests. Obama now has the opportunity to secure America’s place in global ocean governance by joining a treaty that facilitates efficient world merchant shipping in the midst of a global economic downturn and protects the Navy’s right to operate unimpeded throughout the global commons.

The drama so far is thick with irony. These criticisms from the political right have not grasped the real threat to U.S. oceans interests, which is the relentless campaign by nongovernmental organizations (NGOs) such as Greenpeace, in conjunction with certain coastal states, including some of our closest allies such as Canada and Australia, to unilaterally impose maritime rules to restrict international shipping on the oceans and aircraft overflight of the seas for purported environmental reasons. John Bolton, the former U.S. ambassador to the United Nations, describes the partnership between NGOs and some like-minded governments as “norming,” in which “civil society” combines its efforts with the most politically liberal governments to develop international law in opposition to U.S. interests. Many of the most progressive maritime rules emerging from this process are inconsistent with the navigational freedoms protected in the convention, and the U.S. relies on those freedoms to ensure submarines can transit through the world’s chokepoints and launch military operations from ships serving as “sea bases” in the littoral regions of the world. Similarly, less well-intentioned nations such as North Korea, China and Iran have sought to impose control over the ocean out to 200 miles by establishing security zones. Both types of coastal state regulations place at risk American economic prosperity and national security by attempting to close off to U.S. ships and aircraft vast swaths of ocean, allowing the whim of coastal states to deny the use of the global commons.

COASTAL RESTRICTIONS

The creation of new maritime regulations by coastal states throughout the world poses the greatest threat to the freedom of the seas, a core U.S. interest. In recent years, some coastal states have attempted to impose excessive regulations over vessels and aircraft transiting through international straits, such as the strategic Strait of Hormuz, or naval operations as far out as 200 miles from shore. These regulations include prohibitions on the operation of certain types of vessels, such as warships or submarines, or some categories of oil tankers, or the requirement for advance notice to or prior consent by the coastal state in order to conduct transits in international waters or international straits.

All of these restrictions by coastal states attempt to diminish or impair the right of freedom of navigation enjoyed by mariners for two millennia. Four hundred years ago, these rights were recognized by Hugo Grotius, the “father of international law,” who cogently set forth the commercial doctrine of freedom of the seas that fueled an explosion in international trade. “For do not the oceans,” Grotius wrote, “navigable in every direction with which God has encompassed all the earth, and the regular and occasional winds which blow now from one quarter and now from another, offer sufficient proof that Nature has given to all peoples a right of access to all other peoples?”

The coastal states that are trying to topple Grotius and reshape and curtail military access and global shipping understand the importance of the Law of the Sea to preserving navigational freedom. Asserting authority to control environmental regulations and impose security standards over foreign vessels and aircraft, some coastal nations are working aggressively to reinterpret and reshape the Law of the Sea from a regime that promotes freedom of the seas toward one that permits coastal states to control foreign vessels and aircraft in the global commons for environmental, security — or even political — reasons.

The fact that some countries that already belong to the convention and are trying to change it through reinterpreting the terms of the treaty shows that those states understand how to convert a struggle for power into a struggle to shape the law.

China, for example, is a party to the Law of the Sea, but denies that foreign warships have the right to enjoy high seas freedom and overflight in the East China Sea. Beijing is patiently but steadily pushing to change standard interpretations of international law, integrating into its maritime strategy elements of “legal warfare” and an effective public diplomacy campaign to capture world public opinion. By declining to become a member of the treaty, the U.S. has so far ceded the opportunity to influence and shape the constitution for the oceans, yielding the stage to China, North Korea and Iran to popularize their restrictive approach to navigational rights. This is akin to refusing to engage in debate on the future direction of the U.S. Constitution because one’s political opponents have staked out objectionable positions on the issues and are engaged in “reinterpreting” its most fundamental provisions.

In the case of the Law of the Sea Convention, we are starting with a treaty that reflects an enormously beneficial balance in favor of freedom of the seas, although U.S. inattention and nonparticipation over the last 20 years has been counterproductive. Washington has so far buried its head in the sand rather than becoming a treaty partner and energetically promoting the standard — and historically correct — interpretation that protects freedom of the seas. The convention still reflects the essential interest in promoting global freedom of the seas, but that orthodox view is under legal and political assault, both from coastal state regulators within the U.S. government and in foreign capitals.

FREEDOM OF THE SEAS IN HISTORY

Since states began conducting international trade in earnest, they have relied on freedom of the seas for their safety and prosperity. “We live around the seas,” said Socrates, “like frogs around a pond.” In a line running from ancient Greece and Rome, into the modern era through Portugal and Spain, including the Netherlands, the United Kingdom and now the United States, all of the world’s foremost powers achieved and maintained their position of leadership through reliance on pre-eminent sea power and freedom of the seas. The U.S. has long championed freedom of the seas. President Thomas Jefferson built a navy to resist the Barbary pirate corsairs when European governments paid tribute to safely transit the Mediterranean. The War of 1812 was fought largely over the right of U.S. merchant ships to ply the seas freely, engaging in nascent global trade. Freedom of the seas was a feature of President Woodrow Wilson’s “Fourteen Points” during World War I and was one of the war aims included in the Atlantic Charter by British Prime Minister Winston Churchill and President Franklin D. Roosevelt during the World War II.

During negotiations of the Law of the Sea Convention, diplomats from the United States and other major maritime powers, including Russia and Japan, were successful in ensuring that these time-honored principles were incorporated into the treaty in 1982, advancing our interest in naval power and fueling the trade globalization of the 1990s. This is a core American national interest in the oceans, and the Law of the Sea locks in generous navigational provisions that apply throughout the globe — for both naval vessels and merchant shipping.

The convention gives the U.S. the legal and moral high ground to transit freely through more than 100 strategic straits throughout the globe, including the critical Straits of Malacca and Singapore and the Northwest Passage in the Arctic. The convention protects the right of all countries to exercise high seas freedoms to transit on, over and under coastal states’ exclusive economic zones — a special fishing and resource area that extends out to 200 miles from the coastline and comprises 35 percent of the world’s ocean space. This area constitutes the location of much of the merchant shipping traffic and is the fulcrum of naval expeditionary operations where our forces stage at sea to affect events on land. By guaranteeing high seas freedoms in the exclusive economic zone, the treaty reinforces the ability of the armed forces to move — without hindrance and under authority of law — forces, weapons and materiel to the fight. Ultimately Washington will rely on the Navy to guarantee freedom of the seas, but to do so for every transit of every vessel and aircraft begs the question: At what cost? Do we want our only option to be gunboat diplomacy, or would we rather operate with the agreement and support of the global community? Writing in “The Art of War” in the 6th century B.C., Chinese military strategist Sun Tzu said it is the acme of skill to subdue the enemy without fighting. The United States achieved a diplomatic victory in the Law of the Sea Convention by obtaining our most important interests in freedom of navigation. The real value of the convention to the U.S. is in strengthening and influencing a nearly universally accepted treaty that represents the best means of maintaining the stable, secure and prosperous world we envision and the place we occupy in it.

Executives in the energy, telecommunications and shipping industries understand how the convention will make us more prosperous. Military commanders understand how the convention will make us more secure, and the Joint Chiefs of Staff strongly support the treaty. Some detractors of the treaty have unfairly (and inaccurately) suggested that our most senior admirals and generals support the Law of the Sea due to the persistence of a cadre of Navy lawyers. In fact, our military leaders are savvy, independent thinkers who are accustomed to gathering the facts and exercising decisive judgment. Moreover, Navy lawyers are foremost naval officers wearing the uniform and embedded into military units in peacetime and combat. Sharing two professions, the profession of arms and the profession of law, this is not a silkstocking club of suits, but advisers who train and deploy with the force, providing advice on the projection of sea power on the water and ashore.

The few political conservatives who argue the Law of the Sea Convention would undermine U.S. national security add a surreal dimension to these issues. The arguments against U.S. participation in the Law of the Sea are well-meaning but misguided, because they are based on an ephemeral ideological and philosophic distaste for the United Nations, rather than realpolitick calculation of U.S. military and economic interests. Our military security and economic prosperity depend upon unimpaired international freedom of navigation, connecting our “island” nation in North America to the people and markets of the broader world. The United States should be embracing the Law of the Sea Convention, and political conservatives should insist the president and the Senate place it as their first order of business. The treaty is the nation’s most effective means for resisting efforts by NGOs and others to diminish global freedom of the seas. At the same time, a handful of influential conservatives are trashing the very treaty that best protects and promotes our interests. AFJ

Cmdr. James Kraska is a professor of international law at the Naval War College, a guest investigator at the Marine Policy Center, Woods Hole Oceanographic Institution, and a former oceans policy adviser in Global Security Affairs for the Director of Strategic Plans & Policy, Joint Chiefs of Staff. The views expressed in this article are those of the author and do not reflect the official policy or position of the Department of Defense or the U.S. government.